SATYANARAIN BHUWANIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN these cases the petitioner has moved the High Court for grant of a writ in the nature of certiorari to quash the order of Mr. R.D. Paswan, Certificate Officer, Hanka, dated the 2nd February, 1963, ordering a distress warrant to be issued against the petitioner with regard to arrears of sales tax for different assessment periods, cause has been shown by the Additional Government Pleader on behalf of the State of Bihar, respondents No. 1, to whom notice of the rule was ordered to be given. There is an affidavit filed, on behalf of respondent no. 2, Shri J. Pathak, and another affidavit on behalf of respondent No. J, Shri R.D. Paswan, to whom also notice of the rule was ordered to be given.

(2.) ON behalf of the petitioner the main argument put forward by learned Counsel is that on the 28th January, 1963, Shri J. Pathak, the certificate Officer, had allowed the application dated the 27th January, 1963, for one month's time to produce the order of the Superintendent, commercial Taxes. This petition was allowed by Shri Pathak and the certificate cases were ordered to be put up on me 22nd February, 1963. It appears that Shri R.D. Paswan, who was also acting as Certificate Officer, made an order off the 2nd February, 1963, rejecting the petition for time dated the 27th January, 1963, and issuing a distress warrant against the petitioner tor realisation ot arrears of sales tax. The case of the petitioner is that the order of Shri R.D. Paswan, dated the 2nd February, 1963, is illegal and ultra vires since the order was passed ex pane, without giving a hearing to the petitioner, and since it was passed on a date which was not the date fixed in. the case. It was also contended on behalf oi the petitioner that Shri R.D. Paswan had no jurisdiction to deal with certificate cases of Amarpur Anchal on the 2nd February, 1963, according to the distribution chart. ON behalf of respondent No. 1 the Additional Government Pleader however submitted that Shri J. Pathak had no jurisdiction to grant adjournment to me petitioner on the 28th January, 1963, and to fix the cases for hearing on the 22nd February, 1963. The contention of the learned Additional Government Pleader is that there was a distribution chart of work issued by the Subdivisional Officer of Banka on the 19th January, 1963, by which the certificate cases of Amarpur Anchal were to be tried by Shri R.D. Paswan and not Shn J. Pathak. In support of this submission learned counsel produced a letter of the Subdivisional Officer of Banka, dated the 24th March, 1963, enclosing the original distribution chart indicating that the certificate cases of Amarpur Anchal were to be tried By Shri R.D. Paswan. In reply to this submission learned Counsel for the petitioner contended that the copy of the distribution chart sent by the Subdivisional Officer of Banka through the District magistrate to this Court in his letter dated the 27th April, 1963, showed that the certificate cases of Amarpur Anchal were to be tried by Shri J. Pathak and not by Shri R.D. Paswan. In his affidavit Shri R. U. Paswan however states that the distribution chart empowered him to try certificate cases of Amarpur Anchal. It is manifest that there is conflict of evidence on this point and for the purposes of this case it is not necessary for us to express any concluded opinion on this question or tact. We shall assume that Shri J. Pathak and Shri R.d. Paswan had jurisdiction to pass the orders dated tne 28th January, 1963, and 2nd February, 1953, and that both these orders were properly made by them in exercise of their jurisdiction. Now the crucial fact is (and it is not disputed on behalf of the respondents) that the order of snn R.D. Paswan dated the 2nd February, 1953, was made ex parte without giving a hearing to the petitioner and on a date not fixed for hearing the case, in our opinion the order of Shri R.D. Paswan dated the 2nd February, 1963, issuing distress warrant against the petitioner for payment of arrear dues ex parte, without giving a hearing to the petitioner, and on a date not fixed in the case, is an order which is illegal, ultra vires and without jurisdiction. For these reasons we hold that the petitioner is entitled to grant of a writ in the nature of certiorari under Article 226 of the Constitution for quashing the order of Shri R.D. Paswan, dated the 2nd February, 1963, issuing distress warrant against the petitioner ior the payment of arrear dues or sales tax in all these certificate cases. We accordingly allow all these applications. There will be no order as to costs.